Widow of deceased donor gave both of his kidneys to his friend who was suffering from end-stage renal disease. One kidney was sent to Florida for implantation into donee, but doctors determined that the kidney was damaged. The doctors then requested the second kidney, but were informed that it had already been implanted into another patient. The intended donee sued on a number of theories. The district court granted summary judgment to the defendants. The Second Circuit affirmed summary judgment on plaintiff's fraud count but certified questions regarding the donee's ability to maintain a private action against the defendants to the New York Court of Appeals. Judge Jacobs dissented from the certification, asserting that under the facts presented, the intended donee was only entitled to one kidney.

In its opinion, the NY Court of Appeals answered the certified question by holding that plaintiff did not have any claim to the other kidney. Slate (here) and the NY Sun (here) both have articles about the case.

Ben Barros

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The prevailing land use regulation and land tax laws in the United States make the Kelo v. City of New London case and the use of eminent domain for private development particularly dramatic, especially as compared to other countries.

We propose a novel solution for “squaring the eminent domain circle” when large-scale, for-profit development projects require the assembly of land from numerous private property owners. Such anticommons situations may justify government intervention through eminent domain yet they often leave landowners under-compensated. This may skew the incentives for initiating land development projects and lead to considerable injustice.

While the taking component of eminent domain may need to remain an involuntary non-market transaction, we propose a market-based mechanism for the compensation component in the form of a Special-Purpose Development Corporation (SPDC). Offering condemnees a choice between receiving pre-project “fair market value” compensation or pro rata shares in the SPDC would make it more likely that compensation is closely linked to true economic value of the land and, consequently, that land assembly projects are both more just and genuinely social-welfare maximizing

Ben Barros

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Developers attempting land assembly often face a potential holdout problem that raises the cost of development. To minimize this extra cost, developers will prefer land whose ownership is less dispersed. This creates a bias toward development at the urban fringe where average lot sizes are larger, resulting in urban sprawl. This paper examines the link between the holdout problem and urban sprawl and discusses possible remedies, including the use of eminent domain for urban redevelopment.

Ben Barros

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Here is a "property" movie some of you may wish to see over the semester break.

Star Parker has a review of a Christmas movie that is about poverty and wealth, hard work and achievment, and asking how to succeed rather than railing in envy against those who have succeeded. My family went to see the Nativity Story on Christmas Eve, and I was stunned to tears by the preview for Pursuit of Happyness. My wife and I will be going to see this remarkable film later this week. It is a message we need here in America. Here is an excerpt from Star Parker's review:

At a time when the media and the politicians are incensed at record breaking incomes on Wall Street, here is a story of a poor black man who wasn't asking why are they making so much, but wanted to know how he could do it.

His life and his thinking focus and crystallize when he meets a guy parking his red Ferrari. He asks him two questions: "What do you do? And, how do you do that?" He was a broker.

Maybe if our new Democratic leaders catch this film over the holiday break it will help them to start asking the right questions when they reconvene.

The politics of envy do not point to the way out of poverty. Character, aspirations, hard work, and freedom do.

There's also the issue of faith. This is by no means pushed in any heavy handed way in the film. But nevertheless it is there and it is important to notice.

The shelters where Gardner found temporary safe harbor for himself and his son were operated by ministries. And, when he was at rock bottom, when it seemed like things could not get worse, there he was in the shelter church, bolstering his faith to go on.

I can't wit to see this film.

Rick Duncan

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E.J. Dionne's column, about slavery and how "the Christmas story overturns our daily understandings of power and privilege," appears in Today"s Washington Post. Here is an excerpt:

Callahan's remarkable book[Allen Dwight Callahan, The Talking Book: African Americans and the Bible] published this year by Yale University Press, describes the rich and intense relationship between the Bible and the African American imagination. But even more powerfully, it suggests -- without making the case directly -- that the reading of the Christian tradition offered by African Americans is as close as any to the authentic meaning of Christianity....

It is hard, I think, for anyone nurtured in the Christian or Jewish traditions to dispute Callahan's claim that the Bible "privileges those without privilege and honors those without honor" and that it has a "penchant for bringing peripheral people to the center of history."

"The God of holy scripture has made slaves no less than their masters in the divine image and likeness," Callahan writes. "The Apostle Paul had declared that master and slave were equal in God's sight. And in the book of Exodus, God had freed the ancient Hebrews from bondage in Egypt; the liberation of slaves had been God's will. These were ideas at least as revolutionary as any Jeffersonian proposition."

I am not normally a fan of Dionne--even though we both grew up in Fall River, Massachusetts and are both Red Sox fans--but this is an interesting piece.

Rick Duncan

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